Counsel’s Corner: “Don’t Toss Your Unselected Candidates’ Applications Just yet”
A. Bernard Frechtman, Esq., C.P.C. - July 24, 2017
Note: This article is not intended as legal advice. In all instances the reader is cautioned to consult with legal counsel when utilizing this information. ABF*
Title VII of the Civil Rights Law, the Americans with Disabilities Act, The Genetic Information Nondiscrimination Act, and the Age Discrimination in Employment Act require covered employers to retain records for at least one year from the date when the record was made or the decision was made, whichever occurred later. This includes all employment records. As to records for unsuccessful applicants, this includes applications, resumes, interview notes, drug screens, employment tests, reference checks, and background and credit checks. The Fair Labor Standards Act and the Age Discrimination in Employment Act require employers to maintain all payroll records for three years.
If a discrimination charge or a lawsuit is pending, employers must retain all relevant records until the action has reached final disposition, either through expiration of the relevant limitations period, settlement or entry of a judgment.
For hiring decisions, you should make sure you retain all of the applications or resumes, as well as any screening processes, telephone interview, skills testing records, anything that will explain the decision making process and why a certain person was selected.
Do You have To Pay Employees Who Are Off Work For Religious Reasons?
Employers are often confused about just about how far they must go to accommodate an employee’s religious belief. Does religious accommodation mean that time must be given off with pay?
Generally, the answer to that question is no. Although an employer may have to grant a reasonable accommodation of time off to observe a religious holiday, that time off can be without pay. Of course, employers should be consistent with their policies with regard to paid time off. If some employees are permitted to use vacation or other permitted time off for absences due to a religious holiday, then all employees who are absent from work due to religious reasons should be similarly permitted to use paid time off.
House Hearing Addresses NLRB’s New Joint Employer Standard
Members of the House Subcommittee on Health, Employment, Labor, and Pensions held a hearing on a bill that would undo the new joint employer standard the National Labor Relations Board recently established. The Protecting Local Business Opportunity Act would amend the National Labor Relations Act in the light of the Board’s contentious decision where it determined that where an entity affects the means and manner =either directly or indirectly= of the work terms and conditions of another entity’s employees, it will be considered a joint employer with the other entity, even if that power was unexercised.
For decades prior to this decision, joint employment was found only if the control exercised by the putative joint employer was actual, direct and substantial. The Protecting Local Business Opportunity Act would return to this standard by clarifying that “two or more employers may be considered joint employers for the purposes of the National Labor Relations Act only if each shares and exercises control over essential terms and conditions of employment and such control over these matters is actual, direct, and immediate.”
“It is illogical to think that law can be interpreted by logic”